Chief Justice Warren E. Burger: We’ll hear arguments next in Gooding against the United States.

Mr. Rosenthal, you may proceed whenever you’re ready.

Mr. Herbert A. Rosenthal: Thank you.

Mr. Chief Justice and may it please the Court.

The events in this case began three years ago this month.

In early February of 1971, Metropolitan Police Officer Marrion Green was told by a reliable informer that Lonnie Gooding, the petitioner in this case, was selling narcotics from his home.

Mr. Green investigated and on February 9, 1971, using this purportedly reliable informer, caused a controlled or supervised buy to be made, and apparently the informer bought a small amount of narcotics.

Two days later on February 11, Officer Green, having been satisfied that a violation of federal law was probably taking place, made application to the United States Magistrate for the District of Columbia for a search warrant.

This application had been approved by an Assistant United States Attorney as an application under federal law for violations of the federal narcotics laws.

The magistrate so-found after reviewing the affidavits and issued a search warrant, and he did direct the search could be executed at any time of the day or night.

Officer Green and six -- other Metropolitan Police Officers on the evening of February 12, 1971 did enter Mr. Gooding’s apartment and did find various narcotics and of narcotic influence.

As a result thereof, Mr. Gooding was indicted for violation of federal narcotics laws and that’s where we stand today.

The search here was a search for violations of the Federal Law by the members of the Metropolitan Police.

No -- at no time during the application for the search warrant or in the investigation was there any indication that a violation of metropolitan -- of the District of Columbia Code was involved.

The entire search and the entire process was geared to find -- searching out for violations of federal narcotics laws and probable cause having been shown in a search warrant, because of those alleged violations, was issued.

We filed a motion to suppress the evidence in the district court, and the district court granted the motion on the basis that the federal nighttime -- the federal narcotic search warrant procedure standard had to be modified by the District of Columbia Code for reformat provisions in Title XXIII.

The government appealed and the three judges of the Court of Appeals, although all voting to reverse, nonetheless all reached different opinions.

Each judge determined that 21 U.S.C. 879 (a) was the controlling standard because this was a search for violations of federal law.

Judge Wilkey who wrote the majority opinion indicated that if the magistrate had probable cause to believe that the narcotics could be found at any time of the day or night, then Section 879 (a) authorized him to direct execution at any time of the day or night.

Judge Fahy interpreted the statue a little bit differently.

Prior to the effective date of Section 879 (a), narcotic searches have been governed by former 18 U.S.C. Section 1405.

That law was well settled.

If the magistrate had probable cause to issue the basic warrant itself, he could authorize its service at any time of the day or night without any further findings.

So, all the magistrate had to find was probable cause with the warrant itself, and if he made that finding, he could authorize nighttime service without anything more.

Judge Robinson, in effect, dissented in principle from his colleagues.

He felt that the last seven words of Section 879 (a) and for its service at such time meant something.

It meant that the magistrate had to be presented with and had to find some justification for a nighttime search.

The police had to offer some good reason why they needed to go into a person’s home at night as opposed to going in at the daytime.

He concluded that the police had to show some form of reasonable cause or exigent circumstances before they could be authorized to get a nighttime warrant.

He felt that the statute itself, it was plain on its face as to that requirement although it’s true the statute does not spell out the particulars that one has to show, but then on the other hand, neither does this Court’s recently revised Rule 41 state what is “reasonable cause shown” for a nighttime search.

So, it’s obviously within the competence of a court to make those findings.

Judge Robinson, however, even though the government below had conceded that this warrant would not need any particularized showing, nevertheless held that it satisfied his interpretation of Section 879 (a), and he voted to sustain the warrant and to reverse the district judge.

We believe there are two basic issues to present here today.

The first is this Court must decide whether this search is governed by 21 U.S.C. 879 (a) or whether it’s governed by 23 D.C. Code Sections 521, 522, or 523. Once that decision is made, the Court must then determine whether the warrant meets the tests of the statute which it so selects.

There are good reasons why either of the statutory procedures could be determined to be the one that is the guiding one.

For example, Section 879 (a) is in the United States Code, it’s federal law.

It concerns itself with violations of the federal narcotics laws and, indeed, here we have a search for violations of the federal narcotics laws.

Moreover, a United States magistrate issued it.

In effect, he was issuing a federal warrant in this case.

The whole search has the aura of a federal search, and that’s one good reason, most likely why each judge of the Court of Appeals below determined that 897 (a) should be the controlling standard. On the other hand, it may be that Title XXIII of the D.C. Code which became effective February 1, 1971 should be the controlling standard.

The entire investigation, search warrant application, and search were conducted solely by members of the District of Columbia Police.

There were no federal officers of any type in any way involved.

It’s clear from reading Chapter 5 of Title XXIII of the D.C. Code that the imp -- that the provisions are broad enough to authorize the District of Columbia Police to apply for and receive warrants issued for violations of federal law.

Moreover, Congress, when it passed this law, thought it was passing a complete and comprehensive code of criminal procedure for the District of Columbia and, obviously, since the District of Columbia Police are our only local police force it seems logical that any search warrant that they apply for under federal law should be governed by the provisions of then recently enacted Title XXIII.

The government, however, suggests that this search should be governed by Title XXXIII, Section 414 of the District of Columbia Code.

That Section is found in the District of Columbia’s Uniform Narcotic Drug Act. All three judges below rejected the argument that Section 414 could govern this search.

For example, Judge Robinson indicated that the local provisions, that is Title XXXIII, extends only to searches based on suspected narcotics transmissions of the district’s own drug laws.

Here, every warrant document indicates that the search was conducted for violations of the federal narcotics laws.

No party to this search warrant application, its issuance, or its execution had any inkling that the search might be governed by Title XXXIII of the District of Columbia Code.

Now, the government is seeking that this warrant be governed by Title XXXIII because there’s a strong possibility that it was invalid for nighttime search.

Now we believe that it’s highly improper at this time to transform the warrant from a federal warrant into a D.C. warrant, especially since the government wants to do it to justify the search.

The government has to stand or fall on the four corners of the warrant, and every corner of that warrant is marked federal law, 26 U.S.C. Section 4704.

Moreover, the procedure regularities of a varying search warrant procedure codes must be adhered to and it’s important that, in this respect, that the magistrate know under what search warrant provision he’s being asked to issue a warrant.

Once this Court determines which search warrant procedure this warrant should be tested by, the task then becomes determining does the warrant need that test.

If the warrant is governed by Title XXIII of the District of Columbia Code, the answer is clear, the warrant is invalid.

The government doesn’t argue to the contrary.

The warrant, on its face, shows that the requisite requirements of Title XXIII were not met.

They’re spelled out very specifically in the statute, and there’s no indication anywhere in the warrant papers that any of those circumstances existed.

Justice Potter Stewart: Well, except -- doesn’t the government claim here that the search was not conducted in the nighttime?

Mr. Herbert A. Rosenthal: Yes, the government for the first time in this entire case is saying that 9:30 at night, some-four hours after sunset, is not night.

Justice Potter Stewart: So, to that extent, I suppose the government would say that the conditions of the XXIII were complied with, wouldn’t it?

Mr. Herbert A. Rosenthal: Yes.

We’re not contesting that the warrant would be invalid for daytime search under 10 -- XXIII.

Justice Potter Stewart: Right.

Mr. Herbert A. Rosenthal: Now, if the Court decides that Section 879 (a) is the standard, then we also believe that the warrant is defective.

We believe that the plain language of Section 879 (a) requires some showing beyond basic probable cause for the warrant itself to justify intrusion into a man’s home at night.

Had Congress intended to carry forward the interpret -- former Section 1405, it’s obvious it would’ve carried it forward intact without changing it except expanding the types of drugs, narcotics, and other substances to which it applied.

The government failed to do this, and Congress failed to do this. Instead, it issued a statute which, on its face, says there has to be something more for a nighttime servoce.

Justice William J. Brennan: Are you, in effect, reading in 879 (a) the explicit provision of 522 (c) 1, namely the application must demonstrate that (a) it cannot be executed during the hours of daylight?

Mr. Herbert A. Rosenthal: No, we’re not -- we did advocate that to the Court of Appeals, but as we’ve indicated in the reply brief, we’re not advancing that argument here.

We’re contending that 879 (a) requires some additional showing and it may be unfortunate that Congress didn’t spell it out like it did in the D.C. Code.

Justice William J. Brennan: Well, what additional here.

Mr. Herbert A. Rosenthal: An additional showing of why you need -- why the police needs to go into a man’s home at night.

Reasonable cause shown, as the test this Court has set forth in Rule 41.

Judge Robinson said --

Justice William J. Brennan: Well, if you have to show why you have to go in at night, doesn’t that imply that it can’t be executed during the hours of daylight?

Mr. Herbert A. Rosenthal: Well, that may be one reason why you can’t do it.

I mean, the standards in 521 are some of the obvious reasons why you need a nighttime search warrant as opposed to a daytime search warrant, but Congress didn’t limit it, didn’t say anything about what the standards would be, but those would certainly be reasonable standards.

It’s a reasonable test, and we believe that there has to be some showing of exigency, some need.

Justice Potter Stewart: Or some showing of probable cause to believe that grounds exists for the service in the nighttime?

Mr. Herbert A. Rosenthal: That’s correct.

Justice Potter Stewart: That’s way you read 879 (a)?

Mr. Herbert A. Rosenthal: That’s correct.

Thus, we don’t believe that 879 (a) is ambiguous in the sense of not saying what Congress intended.

The only thing missing are the particulars, but that is not fatal because we all -- this Court always has to interpret what probable cause means under the Fourth Amendment or a statutory -- or statutes authorizing search warrants and also, under the Rule 41, you’re going to have to interpret what “reasonable cause shown” means.

Justice William J. Brennan: I gather such warrants under 414 may be issued either by the Superior Court or by United States magistrate?

Mr. Herbert A. Rosenthal: That is correct.

They may be directed solely to District of Columbia Police and for violations of --

Justice William J. Brennan: And under 879, they may be obtained either from a District Court judge or a United States magistrate?

Mr. Herbert A. Rosenthal: Right.

Justice William J. Brennan: Although what it says is if the judge, is Judge Mino the District Court judge in 879 (a)?

Mr. Herbert A. Rosenthal: No, I believe, and I’d have to double check, I believe there’s a definition that means a State Court judge too.

Justice William J. Brennan: Well, how about a Superior Court judge in the district?

Mr. Herbert A. Rosenthal: Well, if it does say State Court judge, and I think it would have to include a District of Columbia Superior Court judge too because the District of Columbia is defined as a state in this Act.

It’s the legislative history in this case that causes the ambiguities and we believe that since the statute is clear on its face, that it requires some additional showing, there’s no need to resort to the legislative history.

Moreover, that legislative history doesn’t supply any standards by governing what justifies a nighttime search.

Thus, it really adds nothing and it, in fact, just confuses the entire issue.

We also contend that this warrant does not satisfy Section 879 (a) as we interpret that statute and, here, we differ from Judge Robinson.

First of all, in the Court of Appeals, the government conceded that this warrant contains none of the particularities which might beg -- might be required by an interpretation of 879 (a) in which it’s found at 879 (a) requires more than former Section 1405.

The government does not acknowledge that concession here, but it certainly made it to the Court of Appeals.

Secondly, there’s just no justification in this record for a nighttime search.

Speed is obviously not an issue.

The controlled buy was made on February 9.

Justice Byron R. White: Under 879, under the plain language of the statute that you rely on, don’t you have to make the same showing for a daytime service as a nighttime service?

Mr. Herbert A. Rosenthal: One could construe that grammatically.

However, given that this country’s history and the common law’s dislike of nighttime searches, I think --

Justice Byron R. White: Well I know, but we’re looking at the face of the statute.

You said we -- you approach is circumstantial and not legislative history of the something?

Mr. Herbert A. Rosenthal: Right, I agree.

When you look at that it would say you’d have to show something for daytime search too, but we believe that since search warrants --

Justice Byron R. White: This is your crux --

Mr. Herbert A. Rosenthal: No.

Justice Byron R. White: You say unless you have something at night.

Mr. Herbert A. Rosenthal: Yes, because night is --

Justice Byron R. White: Nighttime search other than --

Mr. Herbert A. Rosenthal: Night is always the --

Justice Byron R. White: What you have for a daytime search.

Mr. Herbert A. Rosenthal: Night is always the exception and, under the common law, you couldn’t serve search warrants at night so --

Justice Byron R. White: I’m just suggesting then that you are departing from nighttime search.

Mr. Herbert A. Rosenthal: To that extent, yes.

In this case, the government -- the police officers had obviously no need for speed.

They were in no rush.

The controlled buy was made on February 9, the warrant was applied for on February 11, and the search was conducted on February 12.

We believe that there’s just insufficient evidence of that and we, of course, don’t concede that’s a justification to go in at night in any case.

We don’t know the volume of narcotics Mr. Gooding was purportedly selling.

We don’t know from the warrant the volume of narcotics he had in his home at the time the informer went in to make the controlled buy.

Justice William H. Rehnquist: Well, wouldn’t that be a rather difficult thing for an informant or the officer making the affidavit to state in any case?

Mr. Herbert A. Rosenthal: Well, the informant said Mr. Gooding is selling narcotics from his home, and you could say “it seems to me the informant could say, based on his knowledge, he’s selling a lot of narcotics or he’s selling only to close friends.”

Secondly, the informant told the police officer that the narcotics were kept in a green lady’s handbag.

It may be that the informer could have seen the volume of narcotics in that --

Justice William O. Douglas: Green?

Mr. Herbert A. Rosenthal: Lady’s green handbag.[Laughter]

Well, I think he said it that way.[Laughter]

So, I think the informant could’ve given some more particulars on the volume.

I mean, if you’re going to cut out a classification of people who aren’t entitled to the -- to protections from nighttime searches making a person who’s in the supermarket sale of narcotics, I think you’re going to have -- there has to be more shown, and there’s just -- that’s just not indicated here.

Chief Justice Warren E. Burger: Well, that’s a good argument for a different statute, Mr. Rosenthal.

If you draw on the common law concepts when lighting wasn’t very good and the streets were very dangerous and there weren’t lights in homes as readily as there are now, but the Congress didn’t draw the statute that way apparently, and so the Court of Appeals thought.

Mr. Herbert A. Rosenthal: I mean, as to -- well, one judge of the Court of Appeals thought so.

The majority didn’t.

They said there’s, in effect, no -- Congress has said there’s no difference between day and night.

However --

Chief Justice Warren E. Burger: Then he went on to find that it was satisfied, didn’t he?

Mr. Herbert A. Rosenthal: Yes, he did, and we think he erred there because there just weren’t sufficient findings below, plus the fact the government had conceded that this warrant did not have anything of a particularized nature justifying a nighttime search.

Finally, the government is alleging, is claiming here that should the petitioner prevail, nonetheless, the evidence should not be suppressed.

We believe that Congress has established search warrant standards and if those standards are not enforced to the suppression mechanism, then the will of Congress is going to be frustrated.

Congressionally created procedures are just as important as the constitutional procedures, and they must be met, they must be enforced.

Moreover, recently in the Calandra case we believe that this Court reinforced the continuing validity of the “Weeks” rule for suppression of evidence at trial that was unlawfully seized when it’s being used against the person from whom it seized, and that’s precisely our case.

We’re not asking this Court to expand the exclusionary rule in any respect.

We’re just asking it to continue its enforcement as it has in the past to suppress the evidence from, evidence which is unlawfully seized.

The fact that the magistrate may have misunderstood the law is not grounds, in our view, to create an exception to the exclusionary rule.

In ad valorem Spinelli, the magistrate misunderstood the law.

The police came to him in good faith and made an affidavit, and the magistrate thought it was sufficient.

Justice William H. Rehnquist: Of course those are both constitutional violations, weren’t they, ad valorem Spinelli?

Mr. Herbert A. Rosenthal: That’s correct.

We don’t believe that you can make that distinction.

For example, in Miller versus United States the police made a no-knock entry in violation of the US Code statute.

This Court held that the evidence must be suppressed because of the illegality of the entry.

So, I don’t think there’s any case that suggests the fact that a statutory procedure is violated, is worthy of less protection than when a constitutional procedure is violated.

It appears that if the warrant is invalid, either because it violates the constitution or it violates some statutory requirement, then the search must be invalidated and the evidence must be suppressed.

Thus, we don’t believe that this good faith argument should be granted because any time the magistrate makes a mistake of law the government is going to claim “well, everybody was in good faith.”

But, that’s not the case because if the magistrate makes a mistake, then the paper he is issuing is really just a piece of paper.

It really isn’t a warrant.

It’s invalid and the whole purpose of having a magistrate is to make sure that the police have established probable cause and complied with all the statutory requisites before they enter a person’s home.

Hence, for these reasons, we’re asking the Court to reverse the judgment of the Court of Appeals.

Chief Justice Warren E. Burger: Very well, Mr. Rosenthal.

Mr. Frey.

Argument of Frey

Mr. Frey: Mr. Chief Justice and may it please the Court.

In this case, District of Columbia police officers executed a narcotics search warrant at 9:30 in the evening.

In so doing, they were complying fully with the command of the magistrate in the warrant.

The magistrate had, in issuing the warrant, expressly authorized its execution at any time of the day or night.

The application for the warrant, recited facts which it is not disputed, established probable cause with respect to an offense under Title XXVI of the US Code.

We submit also that it cannot seriously be disputed that the facts were cited in the application for the warrant made out in offense under Title XXXIII of the District of Columbia Code.

The issue was whether evidence seized when this warrant was executed in full compliance with its terms should be suppressed because the magistrate erred in authorizing execution at any time of the day or night.

Now, since the facts were cited in the application for the warrant made out a violation both of the District of Columbia and of the United States Code, it’s our view that the nighttime execution was proper, if it was proper under either local district law or under the applicable federal law.

We contend that it was lawful under both, and we contend that the choice is not between the federal law and Title XXIII of the District of Columbia Code.

As I will argue, that is simply a provision that is not and cannot be applicable to a narcotics search in the District of Columbia.

Justice Thurgood Marshall: But these were police officers, city police officers?

Mr. Frey: Yes, they were, and --

Justice Thurgood Marshall: Well, how could they be executing a federal warrant?

Mr. Frey: Well, Section 138 of Title IV of the D.C. Code expressly authorizes them to do so and Justice Douglas’ dissent from the denial of certiorari in the Thomas case, and which I believe you concurred, made that same conclusion that the D.C. police officers are, to that extent, federal agents with a duty to enforce federal as well as local law.

Justice Potter Stewart: But your -- is it your submission that Judge Gesell’s holding then was not even a possible alternative in this case?

Mr. Frey: Well, we submit that Title XXIII simply is inapplicable.

Obviously, if Title XXIII is applicable, the warrant was not -- did not properly authorize nighttime execution.

We submit that Title XXIII cannot be applicable to a narcotics search.

Justice Potter Stewart: Although Judge Gesell held that that was the applicable statute?

Mr. Frey: Although Judge Gesell held that it was applicable to all searches by D.C. police officers.

We submit that that manifestly can itself --

Justice Thurgood Marshall: Well, what did you tell the magistrate?

I’m very worried about this going to a magistrate.

Was the magistrate issuing a federal or a state warrant?

Mr. Frey: He was issuing a search warrant.

Justice Thurgood Marshall: Federal or state?

Mr. Frey: Well, our contention is that it was a warrant authorizing the D.C. police officers to search Mr. Gooding’s home and that it cannot --

Justice Thurgood Marshall: And if it was valid under one, it was good, and if it was valid in the other -- is that quite [Coughing] business?

Mr. Frey: Well, I’m not sure and, indeed, in view of the way this case has developed I understand that it is now -- they are now, as a matter of course, reciting both the District of Columbia Code and the federal violation in the warrant application, but the cases have held that you need not --

Justice Thurgood Marshall: Can -- in a state, like the State of Maryland, could the State of Maryland issue a search warrant for a violation of a federal code?

Mr. Frey: A state judge may, under Rule 41 and I think under this provision of the US Code, may issue a warrant to a federal officer.

Justice Thurgood Marshall: No, this is just state officer.

Mr. Frey: Well, in the case of Maryland, I think only a federal officer may apply.

Now, that includes District of Columbia police.

Justice Thurgood Marshall: Well, you -- as I understand, it’s the government’s position that you’re making the District of Columbia stay.

Mr. Frey: Well, the statute --

Justice Thurgood Marshall: Well, if the state -- I’m taking as a state like Maryland, and I have never heard of a state magistrate issuing a search warrant for the violation of a federal offense to a state officer.

I’ve never heard of it.

Now, I’m not saying it’s not done.

Mr. Frey: Well, I simply -- that analogy, I don’t think, is applicable to our case, Mr. Justice Marshall, because we are dealing with – we are dealing with a warrant that was issued by a federal magistrate to an officer who was, for these purposes, a federal and a local officer.

Justice Thurgood Marshall: Is the magistrate in Washington a federal magistrate?

Mr. Frey: I think he’s in the United States Courthouse.

I believe he is a federal appointee.

Now, he is, under I think Section 43 of Title IV of the D.C. Code also, authorized to issue local search warrants.

Justice Thurgood Marshall: Yes.

Well, there’s no [Inaudible]

Mr. Frey: Our argument, Justice Marshall, is that on the face of the application for the search warrant certain facts were recited which the magistrate found to be the case.

Those facts make out a violation of the District of Columbia Code.

They make out a violation of the United States Code.

Since it’s been held that you need not recite any provision that’s being violated in the warrant application and, indeed, the form in the appendix to the federal rules of criminal procedure has no place to put down the provision that’s violated and since it’s been held that you can put down the wrong provision and the warrant is not invalidated, I fail to see why if you put down another correct provision that should preclude us from relying on the District of Columbia code.

Justice William J. Brennan: Well, Mr. Frey, I gather that your position at least is that 521 and 523 are inapplicable?

Mr. Frey: Certainly.

Justice William J. Brennan: But you don’t claim that 414 is applicable?

Mr. Frey: We do claim that 414 --

Justice William J. Brennan: And you disagree with the Court of Appeals, apparently?

Mr. Frey: We do disagree with the Court of Appeals.

Justice William J. Brennan: Oh, I see.

The -- well, the Court of Appeals held it inapplicable not necessarily because it was resolving the conflict, as I read this opinion, between 414 and 521, if it is a conflict, but rather because 414 (c) arguably imposes an additional requirement that wasn’t met here.

Mr. Frey: Well, we --

Justice William J. Brennan: And, therefore, they go on to say that this requirement -- we will proceed on the assumption that 414 would not validate the search warrants involved.

Mr. Frey: We have argued in our brief that that -- this requirement is clearly met on the face of the record because the requirement to examine on oath and to have affidavits or deposition of the witnesses requires two things.

One is that the magistrate personally take the oath of the complainant which was done here, and the second is that the basis for the warrant application be reduced to writing either in the form of an affidavit or in the form of a deposition.

Justice William J. Brennan: But tell me, Mr. Frey, even if all this is right, ordinarily, we don’t review interpretations by the Court of Appeals, either of the district or of the United States Court of Appeals, of the meaning of district code provisions, do we?

Mr. Frey: Well, I think that would be true as to the --

Justice William J. Brennan: I know.

Do we ordinarily, do we ordinarily?

Mr. Frey: No, you don’t ordinarily.

Justice William J. Brennan: No, we don’t, and why should we in this case?

Mr. Frey: Well, you would be deciding this case in a rather artificial context, I think if you ignored the fact, but you have to recognize the fact that the District of Columbia Code contains a provision for narcotics searches which requires the magistrate to authorize such searches at any time of the day or night.

You can’t decide this case as though that provision doesn’t exist.

I am not saying that the officers in this case acted in reliance on that provision when they secured the warrant and I agree that, ordinarily, you would not take this case to determine the issue of whether they complied with the Title XXXIII procedural requirements.

Although I don’t believe that issue was clearly argued to the Court of Appeals, I think it’s clear that it was an unconsidered dictum because the considerations that bear on it were not actually presented.

Now, with respect to Section 8 --

Justice William J. Brennan: Well, if we’re going to get into the business of second guessing, particularly under the new judicial instruction, the interpretation of D.C. Code provisions by the --

Mr. Frey: Well, you’re being asked to --

Justice William J. Brennan: Court of Appeals, we’re going to --

Mr. Frey: To apply it.

Justice William J. Brennan: Then we’re going to have a lot more work than we have now to do.

Mr. Frey: [Attempt to Laughter] No, we contend that you should defer to the rulings of the local courts on questions of local law.

You are here --

Justice William J. Brennan: Except when you disagree with it.

Mr. Frey: No.

Justice Potter Stewart: The question here is whether the D.C. Code provision is applicable or the general federal provision is applicable, that’s one of the questions?

Mr. Frey: That’s one of the questions that was passed on below.

Justice Potter Stewart: So it’s not the construction of a D.C. Code provision as such?

Mr. Frey: Well, there was a suggestion in the -- in Judge Fahy's opinion that we could not rely on Title XXXIII.

I don’t think this was a holding of the Court.

It was passed as a comment.

Justice William H. Rehnquist: I wonder if either of the United States Court of Appeals or the District Court anymore has the same authoritative mantle in construing the District of Columbia statute since the Court Reorganization Act and the enactment of the District of Columbia Court of Appeals?

Mr. Frey: I think it would be the District of Columbia Court of Appeals.

Now, in this case, we are dealing -- the Thomas case was an identical case on its facts or just about to this case, and the District of Columbia Court of Appeals there, without really considering whether Section 414 could be relied upon, held that you could not look to Title XXIII of the District Code as providing the applicable standard and it looked to Title XXI of the United States Code and held that the nighttime authorization --

Justice William J. Brennan: Well, there you are.

That’s not -- that’s determination, at least the decision which indicates a construction by the D.C. Court of Appeals, not by the United States Court of Appeals, that 414 doesn’t apply.

Mr. Frey: Well, with all respect Justice Brennan, I don’t believe that was a holding by the D.C. Court of Appeals on the availability of 414.

They simply were talking about the relative applicability of the Title XXI provision and the Title XXIII provision without having had presented to them the argument that we present to you.

Now, with respect to Section 879 (a), the US Code provision, unless there are any specific questions I think the necessity of a special showing of exigent circumstances or the like for authorization of nighttime execution of a federal narcotics search warrant has been fully covered in our briefs and in the opinions of the two District of Columbia Courts of Appeals.

With respect to Title XXIII, Judge Gesell held that all warrants issued to District of Columbia police were subject to the provisions of Title XXIII of the D.C. Code regarding the necessity of a special showing for the authorization of nighttime execution.

Now, we think this position is beset with insurmountable difficulties.

In the first place, in order to avoid the impact of Title XXXIII, petitioner has had to argue that this was a federal warrant application, that it was issued by a federal magistrate, that it was for a violation of federal law.

And then, he says “well, if it was okay under federal law, let’s put that to one side and let’s apply local law.”

That is, he wants to say, on the one hand, you can’t apply Title XXXIII because this was a federal warrant and, on the other hand, he wants to say you must apply Title XXIII of the D.C. Code because these were District of Columbia police officers.

Now, we think that he can’t have it both ways.

Also, the alleged policy basis for his argument is completely undercut by the existence of Title XXXIII.

Let us assume for the moment that you don’t consider properly before you or you don’t wish to decide our contention that this search was valid under Title XXXIII.

Nevertheless, what kind of a policy do we have reflected in Title XXIII, which Judge Gesell found, which says that all searches must be -- nighttime searches must have a special justification.

If the District of Columbia police need no special justification to make a local nighttime narcotics search and to get a warrant for that purpose, and if under the federal law no special justification is required, how can it be that the D.C. Police, what policy is it that makes the D.C. police make a special justification for a nighttime warrant to enforce federal law?

I think there simply is no rational basis for interpreting Title XXIII to impose such a requirement.

Now, I’d like to turn at this point, if I may, to the exclusionary rule argument.

Let us assume that the magistrate erred in directing the police to execute this warrant at any time in the day or night, and that alt least five members of this Court of the view that contrary to the conclusions of the three Appellate Courts that have previously considered this issue, the applicable statutes require the magistrate to elicit a special showing in support of the nighttime execution authorization that he conferred.

Does it necessarily follow that the evidence seized under this warrant should be excluded?

Petitioner contends that it does.

He argues, in effect, that any irregularity in the issuance or execution of a search warrant, whether or not have constitutional dimensions, whether or not willful or flagrant, whether or not done only after being expressly authorized by a neutral and detached magistrate must lead to exclusion of the evidence obtained.

The primary reason he advances for this view is the necessity to avoid tainting the purity of our judicial process.

Now, we contend that the application of the exclusionary rule in this case would represent an inappropriate extension of the rule to or beyond its outermost limits and would seriously disserve the interest of justice and undermine the integrity of the criminal justice system.

In the first place, we are not dealing here with a constitutional violation.

This is a case in which exclusion, if there is to be any, must come from an invocation of the Court’s supervisory powers.

Now, in the McNabb case which is perhaps the leading case on the question of supervisory powers, the Court described the occasion for the exercise of such powers for exclusion as follows, and I’m quoting from page 345 of Volume 318.

“Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the Courts themselves accomplices in willful disobedience of law.”

Now, we contend that this case does not come anywhere near that standard for the exercise of the Court’s supervisory power for exclusion.

Now, secondly, we point out that if there was error here, it was made in good faith.

The police and the magistrate can hardly be accused of willful disobedience of a clear statutory mandate when eight of the nine appellate judges, who have thus far expressed their views on the question, uphold the propriety of the authorization of nighttime execution under facts such as these.

Therefore, the objective of deterrence of a official misconduct cannot possibly be furthered by the application of an exclusionary rule in this case.

Finally, the error, if there was an error, was that of the magistrate and not that of the officers.

The warrant application did not specifically request authorization for nighttime execution.

It was the magistrate who directed that it’d be served in any time of the day or night.

Justice Thurgood Marshall: But they had a whole day?

Mr. Frey: Excuse me?

Justice Thurgood Marshall: They had a whole day to execute it and they didn’t.

They waited until the night.

How is that talking about it completely?

Mr. Frey: Well, I think there’s no suggestion here of any improper motive.

We simply don’t know, on this record, why they executed it at night.

It may be that Mr. Gooding and the narcotics were only present at the apartment --

Justice Thurgood Marshall: Well, I don’t know that’s one way or the other, but I’m saying you say that the officer has no responsibility at all, only the magistrate.

I say that if magistrate had been wrong, and given the night, the officers could’ve corrected it and enforce it in the day.

That’s all I’m saying.

Mr. Frey: Well -- but I think, Justice Marshall, that it’s unrealistic to suppose that when the police officer gets a command from the magistrate saying you are commanded forth with to serve this warrant within 10 days --

Justice Thurgood Marshall: Well, how can they serve it in the day and the night?

He says -- “you serve it any time you want to serve” that is what the magistrate said, “and it’s up to you to determine when you want to serve it,” and the police officers decided that they would rather serve it at night for some reason unknown to you and me.

Mr. Frey: Well, let me say this, Justice Marshall.

It is possible that the magistrate could authorize execution at any time of the day or night and that we would agree with you that a particular mode of nighttime execution was illegal not because it violated a statute, but because it was unreasonable and therefore in violation of the Fourth Amendment.

Justice Thurgood Marshall: And didn’t Justice Harlan said that it’s difficult to have to enforce it during the day and, in the privacy of the nighttime, you can do a private arrest.

Mr. Frey: Well, of course this brings us to the argument in the sense that, in this particular case, on these facts we’re talking about a kind of search which this court has, in October 1972, determined would not be considered a nighttime search.

I want to make my point.

If they went in at 3:00 in the morning after waiting until they were sure everybody was asleep with no justification whatsoever for doing that, then even though the warrant had authorized nighttime execution, we might have a question of an independent constitutional violation, but we are talking here about a request for suppression on the basis of a statute and on the basis of an error by the magistrate.

I think it has not heretofore been suggested that the error was that of the police officers, and I don’t see how if the magistrate made a mistake about what the law was in good faith, how we can suppose that there would be effect of deterrence of police officers who presumably are far less sophisticated in their interpretation of a provision like the 21 U.S.C. 879 (a) than the magistrate.

Now --

Justice William J. Brennan: What was Weeks, Mr. Frey?

Mr. Frey: Weeks was constitutional --

Justice William J. Brennan: It was?

Mr. Frey: Violation. -- violation.

Yes, indeed.

Justice William J. Brennan: Was there a warrant?

Mr. Frey: Was there a warrant in Weeks?

I’m not sure that I can answer that.

However, I would like to advert to the quote from Weeks which you had in your dissenting opinion in Calandra because I think that this highlights the difference between this case and Weeks.

In Weeks the Court said, and I’m looking at page 3 of the Calandra slip opinion and it’s at page 394 of volume 232 US, “to sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the constitution.”

Now, we are not talking in this case about an open defiance, a manifest neglect, or a provision of the constitution.

We’re talking about, at most, a good faith mistake by the magistrate.

And, I ask you, suppose that this warrant--

Justice Byron R. White: And by the officer.

Mr. Frey: Excuse me?

Justice Byron R. White: And by the officer.

Mr. Frey: Well, presumably in so far as he--

Justice Byron R. White: Well, unless he thought that he was entitled to the warrant, I think he wouldn’t have made out that affidavit.

Mr. Frey: I think he probably believed that he was entitled to the warrant, that’s true.

Justice William J. Brennan: I just looked at Weeks, Mr. Frey, and you’re correct.

There was no warrant.

It was taken by an official of the United States without a warrant and in violation of the Fourth Amendment.

Mr. Frey: We do believe that there is a policy that favors, encouraging the police to go for a warrant, and the Jones, and Willard, and Ventresca language which we’ve adverted to in our brief clearly shows that when the police go to the magistrate for a warrant, a search, which otherwise might not be considered a probable cause search and therefore a constitutional violation, will be considered a probable cause search in a sense to reward the police or alternatively at least not to punish them, not to hold them to stringent standards when they have gone to the magistrate.

Justice William O. Douglas: Mr. Frey, although it might change your view, this is just exclusionary.

Mr. Frey: Well, the -- I think the language in Ventresca suggests that it would change the determination of probable cause.

Now, I think we get into a question that we don’t have to face in this case, whether where you have a good faith application that reasonably may have been believed to make out probable cause and the magistrate issues a warrant and it's subsequently determined that probable cause has not been made out, whether the application of the exclusionary rule is appropriate there, that’s not this case because we’re not dealing with a constitutional violation in this case.

Suppose that after the D.C. Court of Appeals and the D.C. Circuit had interpreted 879 (a) as requiring no special showing, we had had the same situation that arose in this case and they probably are cases where there was nighttime authorization in a warrant and now the Supreme Court says “that’s a mistake.

879 (a) requires a special showing.”

Can it seriously be contended that it will further the interest of justice?

That you will, in the language of Justice Brennan in Calandra, minimized the risk of seriously undermining popular trust in government if you would allow a defendant to go free with suppressing the evidence against the defendant which was obtained in good faith and relies on decisions of responsible Courts of Appeals?

The Miller case, which my colleague has cited to you, which of course is a no-knock entry case falls in a completely different category.

The issue there was not the validity of the warrant, but of the manner of its execution.

The magistrate did not authorize the police in Miller to make a no-knock entry.

What’s more, I don’t think that there was a contention of good faith in Miller.

In Miller, they did something which was held to be unlawful, breaking down the door and going in.

It’s, I think, a clearly distinguishable situation than this.

Chief Justice Warren E. Burger: Didn’t the Court’s opinion say in the Miller case that a few more words before the break in would have satisfied the statute?

Mr. Frey: Well, I think that’s right.

In any event --

Chief Justice Warren E. Burger: In other words, they hadn’t disclosed purpose and authority and identity as completely --

Now, another important point that I want to make, I think petitioner has misconceived the thrust of our argument in -- on the exclusionary rule point in one significant respect.

If a Court now announces a definitive rule of interpretation under 879 (a) or definitive rule applicable to the District of Columbia police, we agree that warrants thereafter procured in violation of the statute as construed by the Court would result in seizure of excludable evidence.

At that point, of course, we could not make a defense that this was a good faith presentation of an application to a magistrate which they -- which was honestly believed to provide a basis for authorization of nighttime execution.

Justice William H. Rehnquist: But no matter what the Courts would say in this particular case, you’re still going to get arguments before magistrates and in subsequent opinions as to whether there was or was not a proper showing of validity for a nighttime search if the Court should adopt that proposition.

Mr. Frey: That’s true, and I suppose there could be other circumstances in which we would advance the same argument, if they got a warrant.

After all, the exclusionary rule is not required to control the conduct of magistrates.

Magistrates are judicial officers.

They’re presumably under the control of the judicial branch and, presumably, there’s someway to get magistrates to obey the law other than excluding evidence which the police seized pursuant to the directions of the magistrate.

Now, with the nighttime search argument, I raise the issue and we raise it in our brief because it has some importance beyond the confines of this immediate case, the definition of what is nighttime.

The Court has resolved that question with respect to searches under Rule 41.

However, it is an open question presumably with respect to searches governed by the District of Columbia Code where there is no definition of nighttime or daytime, and --

Justice William J. Brennan: Again, shouldn’t we wait on Courts of the District of Columbia to tell us what they think their code means?

Mr. Frey: Well, it’s also presumably an open question under the US Code provision, Section 879.

Justice William J. Brennan: Only if 879 (a) is interpreted as petitioner asks us to.

Mr. Frey: Right.

Well, we are not asking you to reach out to the nighttime search issue if you resolve the 879 (a) issue of our case.

Justice William J. Brennan: You want us to interpret 521, for example, which certainly explicitly refers to nighttime.

Mr. Frey: Well, let me say this.

If you hold that this was a nighttime search under 879 (a), I think we would not wish to persist in our argument that it would not be a nighttime search under Title XXIII.

So, that doesn’t become a problem.

Justice William J. Brennan: You do want us to interpret the D.C. Code, don't you?

Mr. Frey: Not at all.

Justice William J. Brennan: Before the judges there get a chance to interpret it?

Mr. Frey: Not-- I simply suggest that we will withdraw the argument with respect to nighttime search under the D.C. Code if you find that it was a nighttime search under the Federal Code.

If you find that it was not a nighttime search under the Federal Code, you don’t have to reach it under the D.C. Code.

However, I have no doubt that what you might say on the Federal Code issue would have some possible effect on the District of Columbia Court of Appeals --

Justice William J. Brennan: I have no doubt either.

Mr. Frey: But that’s an inevitable result of the role of this Court.

Now, I think one final point with respect to Section 879 (a); we’ve indicated in our brief that the language of that statute, when you look at it on its face appears to support the petitioner’s position.

In asking him questions, obviously the Court was troubled by what standard was for the showing that would have to be made, if some showing has to be made.

Now, presumably in order to ascertain the standard for the showing, one has to go to the legislative history or at least that’s one place one might look.

And when one looks at the legislative history, one finds that the kind of showing that Congress intended to be made in this case was no showing at all.

Now, that creates somewhat of a conundrum about relying on what petitioner contends as the plain language of 879 (a).

For all of these reasons, we submit that the decision of the Court of Appeals should be affirmed.

In this case, contrary to what Mr. Frey suggests, the magistrate was issuing a federal warrant for violation of federal law.

When you look at the warrant in the original District Court record, it’s a federal warrant.

When you look at the background materials that were presented to the magistrate, it’s a federal warrant.

Indeed, the District of Columbia Court of Appeals, Mr. Justice Brennan, implicitly rejected the argument that Section 33-414 of the D.C. Code would govern.

The argument that the government has made in this case, both here and below, were also made in the Thomas case, that is, the warrant should be tested by Title XXXIII Section 414 of the D.C. Code.

That Court elected not to do so, and I don’t believe it said specifically, but it certainly means that in this conflict situation they held this to be, in effect, a federal warrant because they said Section 879 (a) governs it.

We have the exact same situation here, D.C. police getting a warrant.

The District of Columbia Code said “okay, Section 879 (a) governs.”

Our code, 33-414, doesn’t govern.

I think that’s kind of your state law interpretation that this Court ought to give great deference to in interpreting this warrant.

I think both the legislative history of Section 879 (a) and recently revised Rule 41 gives this Court no guidance as to what standards “reasonable cause shown or probable cause were at service at such time” means.

Don’t think that means that an argument could be used to say that this Court did not mean that you had to make some showing for nighttime search when you get the case in asking for an interpretation of Rule 41.

Similarly, the fact that the legislative history of Section 879 (a) does not give any indication of possible standards does not mean that Congress did not intend some additional showing for nighttime service to be required by the police and the magistrates.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Rosenthal.

Mr. Rosenthal, you served in this case at the Court’s request and by the Court’s appointment.

Mr. Herbert A. Rosenthal: Yes.

Chief Justice Warren E. Burger: On behalf of the Court, I thank you for your assistance to Mr. Gooding and your assistance to the Court.